Luma Labs is a small company that sells a camera sling with a sliding clip. When a competitor of theirs filed for a patent on the idea, they weren't concerned. After all, Luma knew of prior art for their mechanism stretching all the way back to 1885. So they were surprised when the USPTO recklessly granted the patent to their competitor. And they were aghast when their lawyers explained that getting the patent overturned in the course of a lawsuit would bankrupt their company.

So they're giving up.

In short, the idea of a sliding camera sling isn’t an amazing new invention. It’s just a really good idea that’s been around for a while and which has been iteratively developed. Neither we nor our lawyers believed that the USPTO would grant a patent for the claims related to this concept. It was a surprise, then, when our competitor was granted a patent covering the concept on November 1st, 2011. To say that we’re disappointed that the USPTO couldn’t find the prior art around the idea is an understatement.

Our disappointment doesn’t matter much in the scheme of things, however. Our competitor now has a legal tool and we’re pretty sure that they desire to use it. This is, as they say, a problem. We and our counsel are more than confident that we can defend ourselves, and will do so vigorously if necessary. On the other hand, we’re a very small company that sells our products in limited volumes and mounting such a defense would consume the majority of our resources. After all, it took three years to rescind a patent about a method of using a swing. In other words, we have a Hobson’s choice on our hands. We could very well lose everything even if we won.

Therefore, we’re acting unilaterally and conceding the market by immediately discontinuing the Loop and LoopIt. Full stop. We apologize for the sudden nature of this decision and our implementation of it, but we feel like our options on this matter are limited.

They've got another camera strap idea that they're hoping to bring to market. But of course, they'll only be able to sell it until the USPTO recklessly grants another ridiculous patent against it.

Particularly since the patent holders may not be malicious — they may have applied for the patent simply to prevent a third party from doing so. (Out of a fear of being driven from the market in the same manner as Luma Labs.)

There really needs to be a system in place to fix crap like this.
Like I dunno if you can just submit the prior art they managed to ignore, the patent is nullified, all of the fees for the patent get paid to the submitter of the prior art.
Then the patent is granted to Mr. Public Domain, so that it eats up that idea and tangents to that idea and hopefully stops another lame patent from being shoveled in.

Indeed, I was under the impression that anyone was free to submit a document as Prior Art during prosecution of a patent. That’s how it works in Canada, at least. (Perhaps the US is different; I could see the patent office being overwhelmed by useless submissions.)

As for “granted to Mr. Public Domain”, once the patent application has been published, it can be cited against anything else forever regardless of whether the patent actually gets granted.

I believe you meant “How the patent system’s flaws and USPTO’s underfundedness destroys…”. The people at the USPTO are just like the rest of us – overworked and underfunded – and it’s the surrounding legal apparatus that allows bad patents (software) and makes challenging bad patents impossible (Luma Loop) that’s the real problem.

Or, as usual, blame Congress for the bad system, and the lawyers who abuse the system (who do you think files all those obviously bad patents?).

Why don’t they file for an ex parte reexamination? Why didn’t their lawyers advise them that this is an option? $2520, file your prior art, USPTO looks at the patent again and decides if it should have been granted. Further, they’ve been tracking this application all along. There’s a two month window after a patent application is published during which you can submit prior art to the USPTO. Why didn’t they do that? Why are they blaming the USPTO for missing non-patent prior art which they themselves knew about, yet didn’t call to the USPTO’s attention?

Also, one suspects that the patent may be quite a bit narrower than they are claiming — people often mistake the general subject area of the invention (sliding camera slings) for the actual invention (a particular type of sliding camera sling, or refinement of existing sliding camera slings). Usually these patent/trademark hysteria stories are written by people with little understanding of the law, or what the trademarks and patents at issue actually cover.

This article shows a complete misunderstanding of how the patent system works. It is not the general idea of the sliding clip that is patentable; it is the specific way that the competitor has designed this particular type of clip. The claims define the scope of protection provided by a patent. In order for prior art to invalidate a claim, the prior art must teach or disclose each and every element in the claim. The claims in this case likely have elements that were not taught by the prior art, and thus may deserve a patent, so long as the claims have at least one element that is new. It is likely the small incremental improvement that is patentable.

Further, no sweeping critique of the patent office can be made without the specific details
of the case. Why wasn’t the patent number included? The claims of that particular patent must be closely analyzed to determine if the USPTO did a good job. Without this analysis, the opinion that this patent is invalid is a worthless opinion, and yes, a “reckless” opinion.

Also, there are ways to invalidate a patent outside of the court. If the company had some cash to spare (maybe $8,000-$10,000 providing they don’t hire the firm with the nice office) they could file for ex parte reexamination very easily. If they have all this invalidating prior art that they claim to have, granting a request for reexamination is practically a rubber stamp approval (if you can’t tell yet, I have filed many granted requests). By the way, I do not have any special love for the USPTO.

If Luma Labs was the first to bring this product to market (before the patent was filed),
they would certainly have a catalog page or a webpage that could be used as evidence of prior publication (publication that occured before the filing date can be used as prior art). I think that either (a) Luma and the competitor thought of this nifty clip independently of one another, which would be a shame for Luma, since they did not think to file a patent application, or (2) they saw their competitor’s nifty design and decided to copy it (happens all the time).

I see this all the time, some company will come out with an innovation, even just a small, incremental improvement on a product. Maybe this small improvement allows them to manufacture the clip $0.10 cheaper than before; or maybe it slides or locks just a little better than before. Whatever the advantage is, their competitor copies the small innovation and uses to their advantage. Then, the competitor cries about patent abuse and a broken patent system or invalid patent when the patent owner complains. If it was such an obvious improvement, why wasn’t it thought of earlier, and why are they copying it? Why can’t they just go back to an old design if the new, patented design is obvious and no great improvement?

Again, this case in particular cannot be judged with a cursory glance, even by me. I do not
know the specifics of this case. If they have a good piece of prior art, then killing the patent is not likely a problem. Otherwise, they are just crying because their competitor has the advantage.

I really hope Luma designs a much better clip as a result of this. This is one way technology progresses – look at the claims and design around them. They might want to consider applying for a patent themselves. Otherwise they spend all that money on innovation and end up with a great product that is just a common commodity, sold freely by all their competitors.

Stop crying about patent abuse and accusing the competitor of being a patent troll. Stop making unqualified assessments of the patent system based on limited information and letters posted by a company. According to your definition, every person who owns a patent and tries to defend it is a troll. There are a lot of hard working people with small companies that rely on patents to protect their products. Maybe this “patent troll” competitor is just one of them.

Thank you aaronm for writing this. I was about to write essentially the same thing. This article is clearly based on a misunderstanding of the patent landscape and makes me wonder if Luma really even have a patent attorney advising them.

Why didn’t Luma file for a patent in the first place? I’m sorry to say, but it does seem remarkably foolish to come up with an idea, decide not to patent it, introduce it to the market place and expect that no one is going to attempt to steal the it. It’s not as though there has been a lack of precedence for just that sort of thing occurring.

If you consciously choose not to lock your door when you leave your house, don’t expect the insurance company to compensate you when your home has been cleaned out by thieves.

There a lot of patent laws that wouldn’t allow this to happen. Here’s just one: If they’re right, and it was in use for more than a year (1885 certainly qualifies), then patenting isn’t possible under 35 USC 102(b).

Not quite. This is more like consciously deciding not to lock your door, coming back home later to find someone else locked it for you, and won’t let you in.

I (and I suspect a lot of others) would like to see the bar raised on ‘obviousness’. Sadly, until that happens, we all have to play this dirty little game and lawyers continue to act as drag on inventive industries.

Slow news day?
This open letter was published in November and as others have pointed out, previously covered on BB. The new product is about to launch and has already been soft-launched to people who signed up when the original product was shelved.

The product and the company seem good, but giving up without a fight was just one option open to them and one they seem to have taken to make a point rather than because it was the only option.

When trying to obtain the trademark for my TV show “Pariah Island”, we ran afoul of Conan O’Brien’s producer Gavin Palone, whose company is called “Pariah”. The USPTO took the position that the word “pariah” being used in two totally different contexts (one a TV show property, the other a production company) in the entertainment industry was too close for their comfort, even though my title had TWO words, and only one of them was the problem. I contacted Palone to see if we could get a gentleman’s agreement, but he immediately refused any negotiation.

By the USPTO’s logic, no film or entertainment product could, therefore, ever have the word “Fox” or “Century” or “Paramount” in it. Or, for that matter, Ralph Bakshi’s “Wizards” should have never gotten approved, since “Wizard of Oz” was already trademarked. You get the picture.

I did some research, and found the name “Pariah” has been used in multiple TV and movie titles over the years, but nothing was swaying the PTO. If we wanted the name, we would have to undergo a lawsuit by Palone, and the PTO was siding with him.

So we changed the name to “Tossed Off.” The USPTO never got the joke, since it’s largely a British euphemism, and actually gave us a trademark for a term that means masturbating. That’s okay, but stepping on Gavin Palone’s toes? No, that’s off limits.

Hollywood.

For more, you can visit http://www.pariahisland.com. I never changed the URL. I’ve also never really spoken publicly about this before, so I bet I get sued in a few weeks and have to change the URL.

Yep, already covered by BB in November. Nevertheless we need a reminder. The patent system is broken, the USPTO is dysfunctional, and the Whitehouse statement on reforming the patent system was horseshit.